Federal Lands: A 660 Million-Acre Mess

There is general consensus that Federal lands are mismanaged, but no agreement on how to fix the problem.

Should ownership and management: (1) remain as is? Or, should some federal lands (2) be transferred to the states, and/or (3) sold to the public?

NOTE: this post initially appeared on TheGuardian.com on January 31, 2017.

Republicans Move to Sell off 3.3m Acres of National Land, Sparking Rallies

Now that Republicans have quietly drawn a path to give away much of Americans’ public land, US representative Jason Chaffetz of Utah has introduced what the Wilderness Society is calling “step two” in the GOP’s plan to offload federal property.

The new piece of legislation would direct the interior secretary to immediately sell off an area of public land the size of Connecticut. In a press release for House Bill 621, Chaffetz, a Tea Party Republican, claimed that the 3.3m acres of national land, maintained by the Bureau of Land Management (BLM), served “no purpose for taxpayers”.

But many in the 10 states that would lose federal land in the bill disagree, and public land rallies in opposition are bringing together environmentalists and sportsmen across the west.

Set aside for mixed use, BLM land is leased for oil, gas and timber, but is also open to campers, cyclists and other outdoor enthusiasts. As well as providing corridors for gray wolves and grizzly bears, low-lying BLM land often makes up the winter pasture for big game species, such as elk, pronghorn and big-horned sheep.

Jason Amaro, who represents the south-west chapter of Backcountry Hunters and Anglers, describes the move as a land grab.

“Last I checked, hunters and fishermen were taxpayers,” said Amaro, who lives in a New Mexico county where 70,000 acres of federal lands are singled out. In total, his state, which sees $650m in economic activity from hunting and fishing, stands to lose 800,000 acres of BLM land, or more than the state of Rhode Island.

“That word ‘disposal’ is scary. It’s not ‘disposable’ for an outdoorsman,” he said.

Scott Groene, a Utah conservationist, said the state’s elected officials were trying to “seize public lands any way they can”, without providing Americans a chance to weigh in. If residents knew their local BLM land was being threatened, said Groene, “I’m sure the communities would be shocked”.

“The other bill hamstrings our ability to manage and ensure that our public lands are being kept safe,” said Bobby McEnaney of the Natural Resources Defense Council. “When you have those two combined, it’s a fairly cynical approach to how public lands can be managed.”

The 10 states affected are Arizona, Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah and Wyoming. Residents can see how much acreage is earmarked for “disposal” in their counties by checking a PDF on Chaffetz’s website.

Due to a controversial change this month to the House of Representatives’ rules, the sale does not have to make money for the federal government. A representative for the interior department, Mike Pool, who weighed in on a version of the bill in 2011, said selling those 3.3m acres “would be unlikely to generate revenue”.

A Republican conservation group in Utah likened it at the time to “selling the house to pay the light bill”.

The acreage identified is drawn from a 1997 survey conducted by the Clinton administration, which sought to identify potential offsets to revive the Florida Everglades after decades of pollution from the sugar cane industry.

The actual language of the 1997 survey, which did not result in land being sold, prefaced its findings with a caution: “Please note many lands identified appear to have conflicts which may preclude them from being considered for disposal or exchange.”

The vast majority of the thousands of parcels have “impediments to disposal”, according to the survey, including hosting endangered species and wetlands or having “cultural significance”.

Barack Obama created at least two federal protections in counties with large swathes of BLM land now designated for disposal: New Mexico’s Organ Mountains-Desert Peaks national monument, in 2014, and Utah’s Bears Ears national monument, in 2016. Arizona’s Parashant national monument, near the Grand Canyon, was designated by Bill Clinton in 2000 and also sits in a marked county.

A spokesperson for Chaffetz said he was not available for comment.

To outdoorsmen like Amaro, selling off individual parcels of national land creates a “multiplier problem”, where a small parcel of land turned private can cut off access for many. That’s what happened in Coronado national forest, he said. Ten acres that led on to hundreds of thousands of acres of public property were turned into state trust land.

“Access has been eliminated for much of the forest. The private landowners now effectively have their own private hunting preserves by not allowing public hunters a way into the national forest,” Amaro said.

Chaffetz’s proposal might in fact be in violation of the common-law Public Trust Doctrine, which requires that the federal government keep and manage national resources for all Americans. Courts have upheld the policy that sale or use must be in Americans’ interest.

John Gale, conservation director for Backcountry Hunters and Anglers in Missoula, Montana, said the Utah representatives were pushing the bills despite their proven unpopularity.

“It’s not only an assault on our traditions,” Gale said. “It’s the idea that they’re stealing that from our children.”

Public Land Sales: ‘The Rest of the Story’… by Professor Rob Natleson

The Constitution says that:

Under the Property Clause (Art. IV, Sec. 3, Cl. 2), land titled to the federal government and held outside state boundaries is “Territory.” Federal land held within state boundaries is “other Property.”

If the host state agrees, the federal government can acquire an “enclave” within the state under the Enclave Clause (I-8-17). This grants governmental jurisdiction to the federal government, but the federal government has to acquire title separately. Washington, D.C. (the most important enclave), for example, is under federal jurisdiction, but much of the land is held by other parties, including individuals.

The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.

Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.

As for acreage (”other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerated powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.

But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.

Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.

In the process of disposal, the federal government must follow the rules of public trust. It would be a breach of fiduciary duty for the feds to simply grant all of its surplus property to state governments. Each tract must be disposed of in accordance with the best interest of the American people. For example, natural wonders and environmentally sensitive areas (such as those now encompassed by the national parks) might be conveyed under strict conditions to state park authorities or (as in Britain) to perpetual environmental trusts. Land useful only for grazing, mining, or agriculture should be sold or homesteaded, with or without restrictions. The restrictions might include environmental protections, public easements, and protection for hunters and anglers.

Most states were admitted to the union pursuant to treaties, agreements of cession, and/or laws passed by Congress. These are called organic laws. They include, but are not limited to, enabling acts and acts of admission. These laws cannot change the Constitution, but they have some interesting ramifications for federal land ownership. That is a topic for another posting.

My article has been cited widely. But it will not surprise you to learn that many reject the conclusions:

Liberals are unhappy, because they want to keep much of our territory socialized.

Conservative land activists are disappointed because they want the federal government to convey land to the state governments, not dispose of it in other ways.

It is significant, however, that no one has even tried to rebut my conclusions or the evidence for them.

The evidence and the details of how I reached my findings are in the article ( http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1072&context=faculty_lawreviews ). Since its publication I’ve uncovered additional evidence, and it has generally corroborated my findings.

Rob Natelson
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado’s Independence Institute.

PS. America was founded on the philosophy of John Locke. Locke defined private property and its origins as (paraphrasing):

If an individual discovers a previously unclaimed (no squatters allowed) natural resource, mixes his labor (sweat) with that resource, then the product resulting is a part of him and is, therefore, his property.

After the property originates, he (and all subsequent owners) can do with it as they please–they can sell it, give it away, bequeath it and even destroy it.

It is funny to me how no one seems to consider that basic principle when discussing “public lands.” There are lots of families in the Western united States who have four and five generations invested in their ranches and are, therefore, according to the foundation of America, the rightful owners of the grass and the water. Yet, they are never mentioned by the “experts.”

Some think it is a mystery why so much land is still claimed by the FedGov in the 11 Western States vs the states East of the Mississippi. It is not mystery. The FedGov simply reneged on their contract to turn the “public lands” in the West over to the states when they became states in accordance with their Enabling Acts.

But the most fundamental argument is that the land does NOT belong to the government, never has and never will. That is because government cannot ethically “own” anything. And that, in turn, is because it does not have (possess or claim title to) anything that it did not previously take from somebody else at the point of a gun.

These are good points with which I agree in many ways, especially the need to protect our precious ranching culture.

The ‘Rest of the Story’: Rightly or not the government controls this land, the public believes it stands to lose hunting and other rights through privatization, and that lessees are getting a free ride.

Lessees think they already own the land. Lessees are sinking under federal rules often designed to run them off the land.

What we have now is unacceptable: Any solution will be imperfect – like the problem is.

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